EU Cookie Law - the definitive guide

8/6/2019 EU Cookie Law - the definitive guide

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www.silktide.com/cookielaw 2

Version 1.0 – updated June 9th 2011

We‟ll update this book with new developments – the latest version is free at

www.silktide.com/cookielaw

Copyright © Silktide Ltd. 2011. All rights reserved. No part of this document may be reproduced, stored in a

retrieval system or transmitted in any form or by any means, without the prior written permission of Silktide

Ltd, except in the case of brief quotations embodied in critical articles or reviews.

The authors have made every effort in the preparation of this document to ensure the accuracy of theinformation within. However, the information in this document is provided without warranty, either express

or implied.

http://www.silktide.com/cookielaw






About this book

We‟ve heard a lot of talk about the new EU Cookie Law, but littlereal information. So we made this book.

We‟ve aimed to be practical and comprehensive. We cover everything from the fine print

of the law to the technologies that satisfy it in detail.

When we started writing we tried to be neutral, but that rapidly became impossible. We

don‟t agree with the law – at least in the way it‟s written now – honestly, it comes over

as a technically illiterate shambles. But it is still law and we all have to deal with it.

Just remember: don‟t panic .

About the author

Oliver Emberton is the Managing Director of Silktide, a software company that helps you

make sense of your websites. Oliver has been programming since he was 8, founded

Silktide when he was 21, and still finds time to write books on EU cookie laws over the

weekend for your entertainment.

Silktide‟s website testing software can tell you what cookies you‟re using and whether

you‟re likely breaking the new law, among many other things. You can try it for free atwww.silktide.com/sitebeam

Disclaimer

This book was not written by legal professionals, although we researched many of their

opinions. This book should not be taken as legal advice.

http://www.silktide.com/sitebeam








The law in 5 minutes

If time is short read this or watch our video1

.

What is the law?

From May 2011 a new privacy law2 came into effect across

the EU. The law requires that websites ask visitors for

consent to use most web cookies.

Nearly all websites use cookies, which are an extremely common

technology for remembering anything about a visitor between

webpages. Cookies are commonly used for login, remembering

preferences, tracking visitors and more.

The new law is intended to help protect people‟s privacy. For

example, if you search for “cars” in Google, they uses cookies to

remember this. Later in the day, on another website, Google may

target car ads at you because they remember who you are. This

might not sound too scary until you think how many thousands of

searches you do on Google, and how much they probably know

about you as a result3.

The vast majority of small websites don‟t do this of course, but they do track visitors to

their website, e.g. via a tool like Google Analytics, and they use social media plugins like

Facebook Like buttons. As we will see, this law appears to outlaw all of this entirely.

1 www.silktide.com/cookielaw or search YouTube for cookie law.2 http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf 3 It is worth pointing out that Google goes to lengths to anonymise this information, and also toexclude sensitive portions of it such as race, religion, sexual orientation, health, or sensitivefinancial categories. http://www.google.com/privacy/ads/#toc-faq




http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf



http://www.google.com/privacy/ads/#toc-faq









What does this mean for websites?

Most EU websites will need to change, or break the law.

Over 92% of websites use cookies at the moment. They‟ll either have to stop using

cookies, or start asking for permission.

To ask for permission, a website must interrupt their visitors – say, with a popup like this:

No one wants to add this to their website, and most visitors are unlikely to be happy

about it either.

There are other solutions which we explore later, but they all have a negative effect on

the experience of a website. Websites could stop using cookies, but generally only by

losing some functionality on their site - and because cookies are so ubiquitous, this isn‟t

easy.




Does this only affect websites hosted in the EU?

The location of your hosting is irrelevant, but the location of your

organisation is not.

Your organisation must fall within the legal jurisdiction of the EU. Each member state has

their own laws, which are based on the same EU directive, but may differ slightly.

For most small/medium organisations, being located in the EU will mean you must

comply.

Are all cookies affected?

The vast majority are - all cookies that are not “strictly necessary for a service

requested by a user”.

The law allows an exception for “strictly necessary” cookies, such as those used to

remember when something has been added to a shopping basket. These cookies would

be expected by the user implicitly for the action they requested to be carried out. Another

example would be login.

The majority of cookies currently in use aren‟t considered strictly necessary though:

particularly cookies for analytics and advertising. Many cookies perform several roles.




What are cookies?

There‟s much more to cookies than you might realise.

What is a cookie?

A cookie is a technology for remembering information between webpages. Because of

cookies, your web browser can remember you are logged in, or have visited a site

before, or what your personal preferences are.

In reality, a cookie is a small text file which is stored by the user‟s browser. The cookie

only contains data, not code, so it can‟t contain a virus or spyware. This doesn‟t mean

that all cookies are harmless in intent, but they can only ever store information.

A cookie remembers information about a specific website, for example.

fontsize=large

This information is restricted to a specific domain, e.g.

www.silktide.com

The domain prevents other websites from accessing each other‟s cookies. However there

are ways that websites can share inf ormation as we‟ll see.

Session cookie

A session cookie expires when the user closes their browser, and sometimes just after a

certain period of time has elapsed (for example, on mobile devices, where the concept of

„closing your browser‟ is less relevant).

Sessions are therefore ideal to remember – for example – if a user has logged in to a

website. When they close their browser they are automatically logged out. They are

usually considered relatively unobtrusive from a privacy perspective.

Persistent cookie

A persistent cookie expires after a fixed date, for example after one year. They are not

cleared when the user closes their browser.




A common use of a persistent cookie is the “Keep me logged in” box found beneath

many login areas. For this to work, the cookie must be stored after the user closes their

browser.

However persistent cookies are also used to track users in unexpected ways. For

example, if you visit Google they give you a unique cookie to track you with. They can

then use this cookie to recognise and link your behaviour between their many sites –

they might for example know what you search for, what websites you visit etc. They can

then use this information to target advertising at you on those same sites.

First party cookies

A first party cookie is restricted to the same domain as the website you are viewing. For

example, if you were visiting www.silktide.com, a first party cookie would only be

readable by pages inside www.silktide.com.

Third party cookies

A third party cookie is set by a domain other than the one the user is visiting. For

example, if a user visits www.example-one.com, a third party cookie might be set by

www.example-analytics.com. Now if the user visits www.example-two.com, this website

could also use the third party cookie set by www.example-analytics.com. In effect, the

user is recognised between sites.

The reality is more complex. In this example neither www.example-one.com orwww.example-two.com can actually see the cookies being set, only www.example-

analytics.com can. However there is nothing stopping www.example-analytics.com from

collecting information in this way and sharing it with others, including the other two

websites.

Third party cookies are most commonly used for tracking users by advertising networks,

search engines and social media sites. For something like the Facebook Like button to

work on websites other than Facebook‟s, third party cookies are essential. However,

because they allow tracking between websites that a user may not expect, they are

generally frowned upon by privacy advocates.

How browsers control cookies

All major browsers provide security controls for cookies. Generally these allow users to

choose to block all cookies, to only allow specific cookies, or to block third party

cookies.

http://www.silktide.com/






http://www.example-one.com/



http://www.example-analytics.com/


http://www.example-two.com/



http://www.example-analytics-corp.com/





























The official standards for cookies (RFC 21094 and RFC 29655) say that by default

browsers should block third party cookies. However almost all browsers permit them, as

long as the website setting the cookie has a P3P privacy policy installed, which is a simple

system for stating what your website‟s privacy policy is. In reality, a P3P policy can be

empty or unused, allowing third party cookies regardless.

For example, this is Facebook‟s P3P policy:

“ Facebook does not have a P3P policy. Learn why here: http://fb.me/p3p”

Browsers permit third party cookies by default largely because failing to do so would

appear to „break‟ the browser in the eyes of most users.

The law doesn’t just mean cookies

The law isn‟t actually about cookies, but because it affects them so much people have

started calling it the „Cookie Law‟. It‟s actually about all technologies which store

information in the “terminal equipment”6 of a user, so that includes so-called Flash

cookies (Locally Stored Objects), HTML5 Local Storage, Silverlight and more.

In fact, the law appears to frown even more on these alternatives to cookies, because

users are even less likely to understand them, and may incorrectly assume that they can

opt out of them via traditional browser controls7:

“Therefore, since flash cookies cannot be as simply d eleted as other third party

cookies (whether by browser setting or manually) they circumvent the user‟s

personal browser settings and therefore also circumvent the consent issue, i.e.

article 5.3 of the e-Privacy Directive becomes applicable. The same goes for other

devices, such as HTML5- techniques, Java API, Silverlight or similar technique.”

For simplicity we refer to cookies throughout this book, but this meaning extends to all

equivalent technologies.

4 http://www.ietf.org/rfc/rfc2109.txt 5 http://www.ietf.org/rfc/rfc2965.txt 6 For our purposes “terminal equipment” means computer or browsing device. 7 http://admin.campaigner.nl//users/ddma/files/95907289-alexanderalvaroexplainescookies.pdf

http://fb.me/p3p

http://fb.me/p3p

http://www.ietf.org/rfc/rfc2109.txt






http://admin.campaigner.nl/users/ddma/files/95907289-alexanderalvaroexplainescookies.pdf






http://fb.me/p3p




What do we need

cookies for?We‟ve broken down the most common uses of cookies and

explained how the law affects them.

Analytics

Status: Prohibited in UK in current form

Inconvenience: High

Analytics software is used to measure the behaviour of visitors on a website, for example

the number of people visiting a site, or making it from one part (say your homepage) to

another (your checkout). The most famous analytics software includes Google Analytics,

Omniture and WebTrends.




To do any kind of analysis of individual viewers – i.e. measure a series of pages, not just a

single page – cookies are essential. Nearly all of the valuable analysis that analytics does is

at this level: for example, determining how long people spent on a website, or working

out what search terms resulted in the most valuable customers.

All of this requires using cookies for one purpose only: to track the behaviour of your

visitors. The UK‟s regulator (the Information Commissioner‟s Office) says8:

“... some uses of cookies can involve creating detailed profiles of an individual‟ s

browsing activity. If you are doing this, or allowing it to happen, on your website or

across a range of sites, it is clear that you are doing something that could be quite

intrusive – the more privacy intrusive your activity, the more priority you will need to

give to getting meaningful consent.”

It would be difficult to argue that tracking your visitors is “strictly necessary for a servicerequested by the user”, and indeed the same UK government body now require their

own website visitors opt-in to be tracked with Google Analytics.

(We dive into the meaning of “strictly necessary” in more detail in our legal FAQ, but

suffice to say it is meant to be very restrictive).

So it appears the only way to use cookie based analytics in the UK is to ask your visitors

for permission.

For the rest of the EU, the jury is still out, but early signs suggest that other countries will

adopt conflicting approaches. This would create a muddled situation where analytics is

enabled or disabled based on the country of the user.

There are some forms of cookie-less analytics as well, such as web log analysis. These

appear excluded from this law but offer far less information than their cookie based

alternatives. They‟re also impractical for many website owners to install.

8 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx

http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx








Advertising

Status: Behavioural ads prohibited

Inconvenience: Potentially devastating

Advertising by itself isn‟t affected by the law, but nearly all web adverts are measured and

targeted automatically via cookies, based on the behaviour of that user over time. The

reason for this is simple: behavioural ads are vastly more effective – some studies have

shown them to be twice as effective9.

Unfortunately behavioural ads are explicitly prohibited by the EU without prior consent

from the user, which is not going to easy to obtain (how do you ask “can we track you to

make our advertising more effective?”). This could mean a real financial hit to anyone

dependent on online ads.

In the EU‟s own guidance they acknowledge this problem, but say privacy is more

important10:

“Behavioural advertising entails the tracking of users when they surf the Internet

and the building of profiles over time, which are later used to provide them with

advertising matching their interests. While the Article 29 Working Party does

not question the economic benefits that behavioural advertising may

bring for stakeholders, it firmly believes that such practice must not becarried out at the expense of individuals' rights to privacy and data

protection.”

9 http://www.networkadvertising.org/pdfs/NAI_Beales_Release.pdf 10 http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp171_en.pdf

http://www.networkadvertising.org/pdfs/NAI_Beales_Release.pdf



http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp171_en.pdf








“... advertising network providers are bound by Article 5(3) of the ePrivacy Directive

pursuant to which placing cookies or similar devices on users' terminal

equipment or obtaining information through such devices is only

allowed with the informed consent of the users.”

EU Data Protection Working Party

Websites that use behavioural ads will have to consider either untargeted ads, or asking

their users an intrusive question. Either option will hit their revenues. Any technical

solutions will have to come from the advertising network (e.g. Google AdSense), so most

sites can‟t do much themselves yet other than drop adverts entirely.

A minor note: most online advertising is now based on Google‟s model of Pay Per Click,

where an advertiser only pays when their advert is clicked on. To avoid this model being

abused by endless repeated clicks from a handful of users, cookies are used to track theuser11. We suspect that this use of cookies could conceivably be defended as “strictly

necessary” if it doesn‟t impair the user‟s privacy, but even this is questionable.

Conversion tracking

Status: Debatable, but we’re not hopeful

Inconvenience: Potentially devastating

A common use of cookies is to track conversions from a specific source. Amazon, for

example, pay people who bring them customers a small slice of their profit. Manywebsites track whether a specific ad results in a conversion on their website.

These are popular for clear reasons and it remains unclear whether their use is permitted

by the law; sadly we suspect not. In contrast to behavioural advertising, the EU hasn‟t

specifically stated this isn‟t allowed , so we‟re forced to guess.

Tracking a user without their consent is clearly frowned upon, but you could argue that

clicking on an advert made it “strictly necessary” that this would happen. Unfortunately

while it may be necessary for the poor website owner, the law is aiming to protect the

user. It could be interpreted either way – we suspect that the user wouldn‟t see beingtracked as necessary though.

11 This is a gross simplification: many other mechanisms are used as well as cookies. But cookiesare quintessential.




If that‟s the case, we can‟t see any sane way users could be asked for permission for this.

Imagine if every time you clicked on an ad you then had to agree to be tracked in case you

bought something . You may as well force all advertisers to write their copy in Japanese.

This is one of the finest examples of why this law is so confusing.

Anti-spam filtering

Status: God only knows

Inconvenience: Minor

Most websites with a form on them attract an unholy amount of spam. A common

technique for reducing this is to set a cookie in the browser using Javascript, which spam

bots won‟t send when they submit a form. The result is less spam for website owners.

We don‟t see any way in which this compromises the privacy of web users, so we believeit would be protected as a necessary technology, or at least not frowned upon heavily as

an invasive one.

Load balancing

Status: OK

Inconvenience: None

Some websites use cookies to spread the load to their website over multiple servers. The

cookie remembers which server they‟re talking to so their experience is consistent.

These cookies are almost unquestionably permitted as technically essential for the

provision of the service that the user would expect. They also tend to be unique, so it‟s

extremely unlikely that a cookie would do double-duty and say track the user as well –

you should of course check to be sure.

Social media plugins

Status: Prohibited, but with contentious liability

Inconvenience: Frustrating




Social media plugins – such as the Facebook Like button – almost all use cookies to track

their visitors in a way that goes beyond what a user might expect. If you visit a website

with a Facebook Like button on it, then Facebook know about it – even if you‟re not

logged in to Facebook, and don‟t click their button12.

Of course these plugins have to use some cookies to work. Without cookies these

buttons would need to ask you to log in every time you clicked on them. But to justify

the cost of providing these buttons, they generally go further and mine for information,

which specifically violates the new privacy law.

Future versions of these social plugins could arise which wouldn‟t do this, but we

wouldn‟t hold our breath.

User preferences

Status: A mess

Inconvenience: Minor

Many websites use cookies to set and recall a user preference – for example, to allow

larger text for visually impaired users. Without cookies this would be impossible.

Shockingly, the UK regulator appears to specifically question whether even this is

allowed13:

“The only exception to this rule is if what you are doing is „strictly necessary‟ for a

service requested by the user ... The exception would not apply, for

example, just because you have decided that your website is more

attractive if you remember users’ preferences ...”

12 http://news.cnet.com/8301-13578_3-20006532-38.html 13 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx

http://news.cnet.com/8301-13578_3-20006532-38.html












Try not to spit your own teeth out when reading that.

Qualifying their own guidance, they later say:

“It might be useful to think of this in terms of a sliding scale, with privacy neutral

cookies at one end of the scale and more intrusive uses of the technology at the

other. You can then focus your efforts on achieving compliance appropriately

providing more information and offering more detailed choices at the intrusive end

of the scale.”

“The more privacy intrusive your activity, the more you will need to do to get

meaningful consent.”

The vast majority of user preferences are privacy neutral – the user‟s preferred font size,

or what order they would like their news articles to be displayed in. We therefore

understand that websites would need to do less to comply with user preferences

cookies; presumably with a small disclaimer underneath the affected feature.

But wait. The above quotes are from the UK regulator of this law, and seem to

contravene what the EU directive allows14:

“This shall not prevent any technical storage or access for the sole purpose of

carrying out the transmission of a communication over an electronic

communications network, or as strictly necessary in order for the provider

of an information society service explicitly requested by the subscriber

or user to provide the service.”

We would argue that if a user sets a preference for a website – say by clicking on a

button – that they “explicitly requested” a service, and that to provide that service

cookies are “strictly necessary”.

In essence, we think the ICO‟s mention of user preferences is false or at the very least

confusing. But remember, we‟re not lawyers.

The one thing we know for sure is that no-one seems to know anything for sure.

14 http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf








Add to basket

Status: OK, with caution

Inconvenience: None

Adding something to a basket is almost impossible without cookies15. The user clearly

expects this action to store something about them for a short while – accordingly

cookies are “strictly necessary” and allowed. The ICO even cited this as a specifically

permitted use of cookies16.

“This excepti on is a narrow one but might apply, for example, to a cookie you use

to ensure that when a user of your site has chosen the goods they wish to buy and

clicks the „add to basket‟ or „proceed to checkout‟ button, your site „remembers‟

what they chose on a previous page. You would not need to get consent for this

type of activity.”

There is a caveat: the cookies which allow adding to a basket sometimes are shared for

other purposes. Because many sites implement this through general purpose „session‟

cookies, this can be quite common, and you should check to be sure.

Login

Status: OK, with caution

Inconvenience: None

15 The technically inclined could pass a session ID in the query parameters for each subsequentpage, which is generally frowned upon as it embeds security information (your session) insomething public (the URL).16 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx









Logging in to a website is almost impossible without cookies17, and the “remember me”

checkbox that appears below most login forms is entirely impossible. The user clearly

expects a login facility to remember who they are for a time – accordingly cookies are

“strictly necessary” and allowed in most cases.

There is a caveat: the cookies which allow login sometimes are shared for otherpurposes. This is particularly true if they don‟t expire when the user has logged out ; the

user may still be tracked and didn‟t implicitly consent to this. Because many sites

implement login through general purpose „session‟ cookies, this can be quite common.

Remembering whether cookies are allowed

Status: Hilarious

Inconvenience: Moderate

So this is at least funny.

17 The technically inclined could pass a session ID in the query parameters for each subsequentpage, which is generally frowned upon as it embeds security information (your session) insomething public (the URL).




Assume you ask a visitor whether they consent to using cookies. How do you remember

their response – with a cookie?

If you want to avoid asking the user the same question on every page, you‟ll have to. Of

course if they accept the use of cookies, you can set a cookie and never ask them again.

But if they don‟t, you can‟t remember, so you have to ask them the same annoying

question on every page.

What this means is you can‟t really show a popup window like the one above. There‟s no

point giving them a “No way” button because you‟ll have to ask them again, and the

popup would appear on top of your page and drive any visitor to insanity.

So you‟ll probably need an accordion strip like this instead, with a single button:

The strip would appear at the top or bottom of every page. It would be mildly intrusive

of course, but at least the user could dismiss it with a single click.

Nevermind that storing a single on/off cookie that holds no private information

whatsoever and specifically recalls that you don‟t want to be tracked is actually in

violation of the law that it would be upholding.

Still, at least it‟s funny.




The situation in the UK

In briefThe law is confusing

Won’t be enforced until May 2012

Financial penalties (£500k) / prosecution possible

Likely affects tens of thousands of organisations

Penalties appear unlikely for small organisations

Who is responsible?

There are two bodies in the UK to be aware of:

The DCMS

Department for Culture, Media and

Sport

The DCMS are legislators. They write

and pass laws.

In this case they‟re responsible for the

specific UK law, based on what the EU

required of all member states in the EU e-

Privacy Directive.

The ICO

Information Commissioner’s Office

The ICO are regulators. They police and

enforce the laws.

Anyone may raise a complaint about a

website to the ICO, who resolve disputes

and exercise penalties.




Why the confusion?

Only vague recommendations have been given, and the law is ambiguous.

The UK government copied the confusing EU directive word-for-word without adding

any clarification on any issues. They‟ve also intentionally chosen to avoid giving specific

recommendations on how to comply with the law18:

“... we do not think there is any rationale for Government to specify the technical

measures needed to obtain consent.”

The theory is that industry will figure out the best solutions themselves over time, but

currently the industry remains confused.

When does the law apply?

Enforcement action won’t begin until May 2012, but they expect to see action

before then.

The UK only partly described19 how it intends to comply with the EU directive before it

came into effect on May 2011. Because of the resulting confusion, the commission

responsible has said they will delay enforcement of the law until May 201220.

The ICO have said they will take a dim view of organisations that fail to act before then:

“This does not let everyone off the hook. Those who choose to do nothing will have

their lack of action taken into account when we begin formal enforcement of the

rules.”

Information Commissioner, Christopher Graham

What fines / penalties apply?

The ICO can fine organizations up to £500,000 if they “seriously breach” the

new rules21.

18 http://www.dcms.gov.uk/images/publications/cookies_open_letter.pdf 19 http://www.theregister.co.uk/2011/05/25/cookies_directive_partial_notification/ 20 http://www.ico.gov.uk/~/media/documents/pressreleases/2011/enforcement_cookies_rules_news_ release_20110525.ashx

http://www.dcms.gov.uk/images/publications/cookies_open_letter.pdf



http://www.theregister.co.uk/2011/05/25/cookies_directive_partial_notification/



http://www.ico.gov.uk/~/media/documents/pressreleases/2011/enforcement_cookies_rules_news_release_20110525.ashx










“The Commissioner will be able to impose a monetary penalty notice if an

organisation has seriously contravened the Regulations and the contravention was

of a kind likely to cause substantial damage or substantial distress. In addition the

contravention must either have been deliberate or the organisation must have

known or ought to have known that there was a risk that a contravention would occur and failed to take reasonable steps to prevent it.”

The ICO has wide ranging powers to request information from organisations, audit them,

and serve them with enforcement notices. If these measure fail they can issue financial

penalties or prosecute those who commit criminal offences.

What is the risk to me?

Tens of thousands of organisations could be affected, but the risk of

prosecution or a penalty is low.

Because the law is new, there are no figures for what percentage of cases are likely to be

upheld – however, we do have figures for other Acts the ICO has regulated for some

time22:

Data Protection Act

Cases received: 33,234

Cases closed: 32,714

Prosecutions: 9 Enforcement notices: 15

Freedom of Information Act


Cases closed: 4,196

Regulatory and enforcement actions: 3

There is no guarantee that the e-Privacy law will be enforced in a similar way, but if so it

appears prosecutions and financial penalties are an absolute last resort. However, it also

suggests that tens of thousands of organisations may at least be ordered directly to

comply with the law.

The risk of penalty or prosecution further depends on how many people your website is

likely to affect.

The ICO say they will only enact financial penalties which affect a large number of people:

This presumably rules out the majority of small businesses and websites23:

21 http://www.ico.gov.uk/news/current_topics/new_pecr_rules.aspx 22 http://www.ico.gov.uk/about_us/our_organisation/key_facts.aspx

http://www.ico.gov.uk/news/current_topics/new_pecr_rules.aspx



http://www.ico.gov.uk/about_us/our_organisation/key_facts.aspx








“The monetary penalty powers will apply only to the most serious breaches, such as

cases where a large number of individuals have suffered distress”

The ICO say they intend to issue further guidance on how they intend to use their

powers later in 2011.

23 http://www.ico.gov.uk/news/current_topics/new_pecr_rules.aspx










party cookies but specifically not to prohibit web analytics.

This contrasts with the UK‟s approach which appears to

prohibit analytics.

Slovenia Has notified the EU of some measures, but nothing isenforceable at this time.

Luxembourg Has notified the EU of some measures, but nothing is

enforceable at this time.

Latvia Has notified the EU of some measures, but nothing is


Lithuania Has notified the EU of some measures, but nothing is


Netherlands Has not notified the EU yet. Their discussion is ongoing27.

Austria No notification, no clarification yet.

Belgium No notification, no clarification yet.

Bulgaria No notification, no clarification yet.

Cyprus No notification, no clarification yet.

Czech Republic No notification, no clarification yet.

Finland No notification, no clarification yet.

Germany No notification, no clarification yet.

Greece No notification, no clarification yet.

Hungary No notification, no clarification yet.

Ireland No notification, no clarification yet.

Italy No notification, no clarification yet.

Malta No notification, no clarification yet.

27 Pascal Van Hecke: http://eu.techcrunch.com/2011/03/09/stupid-eu-cookie-law-will-hand-the-advantage-to-the-us-kill-our-startups-stone-dead/

http://eu.techcrunch.com/2011/03/09/stupid-eu-cookie-law-will-hand-the-advantage-to-the-us-kill-our-startups-stone-dead/











Legal questions

We’re outside of the EU, are we affected?Only if you have operations in the EU.

If your organisation falls under the jurisdiction of the EU then it is subject to this law. The

regulators who enforce it are based in the member states of the EU. So if your

organisation is – say – located solely in the US, but sells to EU customers, we don‟t

foresee this causing problems for you.

If on the other hand you have offices in the EU, or other legal entities, they may be

subject to the law29:

“If you are a multinational company headquartered in the US, you should be doing

something to comply with this directive”

Dennis Dayman, Chief Privacy Officer at Eloqua

This is a complex issue for multinational organisations and you should seek appropriate

legal counsel.

Can we just host our website outside of the EU?

No.

If your organisation falls under the jurisdiction of the EU, it doesn‟t matter where your

website is hosted. It will be your organisation that is prosecuted, not your hosting

provider.

What does “strictly necessary” mean?

It’s more restrictive than it sounds.

It is often said that cookies are allowed if they are “strictly necessary”. This quote comes

from the original EU Directive30:

29 http://www.infosecurity-us.com/view/18242/cookie-monster-new-eu-privacy-law-applies-to-us-firms-with-european-operations/

http://www.infosecurity-us.com/view/18242/cookie-monster-new-eu-privacy-law-applies-to-us-firms-with-european-operations/









“This shall not prevent any technical storage or access for the sole purpose of

carrying out the transmission of a communication over an electronic

communications network, or as strictly necessary in order for the provider

of an information society service explicitly requested by the subscriber

or user to provide the service.”

Lets break this down.

1. A user must explicitly request a service.

2. Cookies must be strictly necessary to provide that service.

So if cookies are set for a service the user did not specif ically request, they‟re not

allowed. And if the service they did request didn‟t need those cookies, they‟re not

allowed.

Analytics, behavioural advertising and conversion tracking therefore seem clearly

excluded.

Login, adding items to a basket and most user preferences appear to be allowed.

If in doubt, remember the spirit of the law is to protect the privacy of users; if necessary at

the expense of website owners31:

“While the Article 29 Working Party does not question the economic benefits that

behavioural advertising may bring for stakeholders, it firmly believes that such

practice must not be carried out at the expense of individuals' rights to privacy and data protection.”

What is clear is that cookies are not permitted just because they are “strictly necessary”

for the website owner. They must be explicitly requested by the user as well.

The UK regulator also clarified that “strictly necessary” is a narrow definition, as is

unlikely to accept much wiggle room32:

30 http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf 31 http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf 32

http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_applic

ation/advice_on_the_new_cookies_regulations.ashx

















“The only exception to this rule is if what you are doing is „strictly necessary‟ for a

service requested by the user ... This exception needs to be interpreted

quite narrowly because the use of the phrase “strictly necessary” means its

application has to be limited to a small range of activities and because your use of

the cookie must be related to the service requested by the user.”

What about states in the EU other than the UK?

They haven’t published laws yet, and they could be different.

At the moment only the UK has published any guidance at all, and it is possible that the

other EU member states will set different laws. If that‟s the case, website owners may

need different solutions for different parts of the EU.

Isn’t this just going to all be ignored? By small companies, possibly. But services you depend on will likely be

affected, and you might be compelled to act.

In effect the law criminalises the vast majority of existing EU websites. Currently there

are – by the government‟s own admission – inadequate technologies to make compliance

with the law practical. So change will be slow.

The first people to be prosecuted will also probably be the largest. It‟ll take a test case or

two for more people to take the law seriously.

You may find that services you depend upon – particularly those which use 3rd party

cookies, like adverts, social media plugins and analytics – start to change or limit their

capabilities for users in the EU.




Technical questions

What exactly is meant by “cookies”? Web cookies and anything like them stored on your user’s computers.

The law isn‟t actually about cookies, but because it affects them so much people have

started calling it the „Cookie Law‟. It‟s actually about all technologies which store

information in the “terminal equipment”33 of a user. The EU directive says34:

“Member States shall ensure that the storing of information, or the gaining of

access to information already stored, in the terminal equipment of a subscriber or

user is only allowed on condition that the subscriber or user concerned has given hisor her consent”.

You might be thinking that doesn‟t even mention cookies, and you would be right. The

only reference to cookies occurs later in their clarifying statements35:

“Third parties may wish to store information on the equipment of a user, or gain

access to information already stored, for a number of purposes, ranging from the

legitimate ( such as certain types of cookies ) to those involving unwarranted

intrusion into the private sphere (such as spyware or viruses). It is therefore of

paramount importance that users be provided with clear and comprehensive

information when engaging in any activity which could result in such storage or

gaining of access.”

So essentially this law lumps the storage of cookies together with spyware and viruses,

for the same regulation.

The UK regulator also clarified that all similar technologies are covered by the law36:

33 For our purposes “terminal equipment” means computer or browsing device. 34 Article 5(3): http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf 35 Recital 66. http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf 36 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx

















“The Regulations also apply to similar technologies for storing information. This

could include, for example, Locally Stored Objects (c ommonly referred to as “Flash

Cookies”).”

What about cookies we can’t remove? You probably have wiggle room here, if you can prove it.

Many existing Content Management Systems, programming languages and other

technologies set cookies automatically. For website owners and developers who didn‟t

write those technologies, they need updated software with the option to turn off cookies

before they can become compliant.

This is likely to be an expensive and time consuming process. The software companies

have to rewrite their technology – if they care to – and the website owners have to

upgrade to it.

If you look at the UK‟s regulator (the Information Commissioner‟s Office) own website,

they have two cookies which they freely admit they can‟t remove just for this reason:

“We have recently become aware of this cookie. We are working with the supplier

of our content management system to remove it or, if it can‟t be removed, to find

another solution.”

Assuming that the ICO doesn‟t hold other organisations to a double standard, we would

assume some leniency when trying to remove some cookies from their websites.

Can’t people turn off cookies in their browser? Sadly this is not enough.

All modern browsers have the ability for a user to change their settings concerning

cookies, and block websites from storing cookies on their machines. Previously, the law

said if your website does store cookies, you need to let your users know why you store

cookies, and give them clear instructions on how to „opt out‟ if they objected. Manywebsites did this by writing a privacy policy.




The new law however ignores the settings you currently have set in your browser,

saying37:

“At present, most browser settings are not sophisticated enough to allow you to

assume that the user has given their consent to allow your website to set a cookie. Also, not everyone who visits your site will do so using a browser. They may, for

example, have used an application on their mobile device. So, for now we are

advising organisations which use cookies or other means of storing information on a

user‟s equipment that they have to gain consent some other way.”

This means for now it‟s up to the owner of the website to ask for the user‟s consent

when they visit their website.

Won’t future browsers handle this for me? We don’t believe browsers can completely satisfy the law for years, if ever.

We elaborate more in our Future section (page 49).

What about Flash cookies, HTML5 or similartechnologies?

All “similar technologies” to cookies are covered by this law.

This includes Locally Stored Objects (so called „Flash Cookies‟), HTML5 Local Storage ,Silverlight, Java and anything else which stores information about a user on their

computer. For brevity, these are all usually referred to as „cookies‟.

What has been made clear is that websites can‟t comply with this law by using another

technology that does that same thing as cookies38:

“ The Regulations also apply to similar technologies for storing information. This

could include, for example, Locally Stored Objects (commonly referred to as “Flash

Cookies”).”

37 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx 38 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx














Information Commissioner‟s Office

It also appears that if anything, these alternatives to cookies are more frowned upon by

the law than traditional cookies39:

“Therefore, since flash cookies cannot be as simply deleted as other third party




devices, such as HTML5- techniques, Java API, Silverlight or similar technique.”

Who is responsible for 3rd party cookies?

The website the user is visiting, at least for now.

Websites frequently embed plugins or scripts from third parties which themselves set

cookies. Often these cookies are not even visible to the website which embeds them –

for example, if you add a Facebook Like button to your site, your website can‟t access

any of Facebook‟s cookies, and they can‟t see any of yours.

Your website can‟t therefore read or write any of the cookies which those third parties

set – but – your users will still have those cookies set on their devices.

This gets into an awkward situation where you‟re responsible for cookies which are

outside of your control.

The EU said40:

“... the consent obtained to place the cookie and use the information to send

targeting advertising would cover subsequent 'readings' of the cookie that take

place every time the user visits a website partner of the ad network

provider which initially placed the cookie.”

Note that they specifically state the permission belongs to the “website partner” of the

“ad network provider”. So you couldn‟t just have – say – Google ask one question for allof their adverts on all sites. They‟d have to ask for each and every site that shows Google‟s

ads.

The UK regulator concluded they don‟t know how this will work yet41:

39 http://admin.campaigner.nl//users/ddma/files/95907289-alexanderalvaroexplainescookies.pdf 40 http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp171_en.pdf












“ This may be the most challenging area in which to achieve compliance with the

new rules and we are working with industry and other European data protection

authorities to assist in addressing complexities and finding the right answers.”

What about saving a session in a query parameter?That’s probably OK, which is a bit of a loophole.

The law refers to information stored on the user‟s own “terminal equipment”42 (e.g. their

computer).

Query parameters, like this:

www.example.com/?session=1234

Are part of the communication mechanism between the user and the server which

provides the website. Of course they‟re also stored on the user‟s computer, but only in

the sense that URLs are needed to visit any webpage.

So if websites started to put sessions in their URLs instead of cookies, it is hard to see

how they would be covered by this law. They aren‟t being stored, just passed from page

to page.

Of course this approach has numerous problems – it‟s less secure, less user friendly – and

it can‟t remember a user between visits. But it probably isn‟t illegal, so expect to see it

used as a get-out-of-jail pass.

The only thing more ridiculous than this exception would be if the EU decided to try and

prohibit it, so let us be grateful that query parameters don‟t also require consent.

What about IPv6? Won’t that implicitly trackeveryone?

More or less, yes.

IPv6 is the next generation technology for addressing devices on the Internet, and is being

slowly adopted around the world. It provides a frankly insane number of addresses43 - so

41 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx 42Article 5(3) http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf 43 Approximately 340 undecillion or 3.4×1038













many that in theory, every device on the internet would have its own fixed IP address.

(At the moment, your IP address is not a reliable indicator of who you are).

If and when this happens, tracking a user would be almost unavoidable, and cookies

wouldn‟t be needed for many tracking purposes. IPv6 is many years away from being

widespread.




Why the cookie law is

total clownshoes44

It was impossible to research the new cookie law without

developing a thorough hatred of it.

My original idea was to write two articles, arguing in

favour and against the law. But as the hours passed I

simply couldn‟t abuse enough substances to make me

say anything kinder than “well, at least they meant

well”.

So screw it. Let‟s give „em both barrels.

The law criminalises everyone

The law was meant to protect the privacy of people

using the Internet. To accomplish this, the EU made

over 90% of websites illegal .

Let us imagine we wanted to ban bullying at school.Like the EU surveying the Internet, we might look at

bullying from afar, conclude that most bullying is

verbal, and decide the solution is to ban all children

from speaking.

Now if we proposed such a ridiculous notion you

might expect people would complain! Perhaps

people closer to the problem of child bullying might say:

But most child speech is harmless!

You can‟t ban child speech - it‟s unenforceable!

If you ban child speech, other countries will have an advantage!

Entire industries depend on child speech! We‟ll go out of business!

44 Clownshoes: adj. - seeming ridiculous, completely out of place or proportion; utterlyimpractical.






Think how many people can be bothered to read the fine print in a mortgage application

– probably the most important transaction in their life. Now how much do you think they

care about your damn cookie policy?

The law is technically illiterateThe law doesn‟t actually target cookies alone – it refers to „information stored in the

terminal equipment of a user”. So anything stored on your computer, basically. They

actually lump spyware and viruses into the same description as cookies45.

Like us banning child speech, they heard criticism from industry and decided to allow a

narrow exception for cookies which are absolutely essential to accomplish exactly what

the user requested. That‟s like us saying we‟ll allow child speech only if it is required for

the child to stay alive.

Taken to its logical extreme, the law should prohibit query parameters – or even URLS –

without consent, because these could be used to track the user (and given the new law,probably will be).

Cookies are going to be exceedingly hard to remove from existing technology, and the

one year grace period is not close to enough. The technology doesn‟t even exist yet, and

by the time it does you‟re not going to force the entire EU to upgrade their Content

45 EU Directive, Recital 66: http://register.consilium.europa.eu/pdf/en/09/st03/st03674.en09.pdf








Management Systems, analytics, social plugins, discussion forums, conversion tracking and

advertising mechanism in a year.

But any web designer could have told them that already.

The law is economically ignorant

The Internet is an incredible engine for economic and educational growth. Consider a

world without Google – a company that makes over 97% of their revenues from targeted

ads46. The Internet economy we live in means that a child with a smartphone in Africa can

use billions of dollars worth of search technology for free and Google can create jobs and

make a profit.

Similarly, the undeniable impact of Facebook, YouTube or Twitter wouldn‟t be half as

pronounced if they weren‟t allowed to pay for themselves via efficient advertising. That is

literally their business model 47 .

None of this is possible if we can‟t track people. I‟m not saying this shouldn‟t be

regulated, or that there aren‟t concerns, but let‟s not outlaw all music to prevent another

Justin Bieber album.

The companies which are building the jobs of tomorrow are increasingly on the Internet.

If Europe wants to build the next Facebook, Groupon or Google they can‟t criminalise

the very technology they‟re built upon.

The law is clumsier than an elephant on greasedrollerskates

If you read the law in detail, it‟s clear it hasn‟t been written by anyone who understands

the Internet. I‟d naively assumed when legislating something, you employ experts on that

something.

The sheer volume of bumbling, apologetic half-explanations falling from the government

mouthpieces is almost as comic as it is tragic48:

“we are working with industry and other European data protection authorities to

assist in addressing complexities and finding the right answers”

46 http://www.sec.gov/Archives/edgar/data/1288776/000119312509150129/dex992.htm 47 Ok, Twitter doesn‟t have a business model yet. But it‟ll probably be that. 48 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx

http://www.sec.gov/Archives/edgar/data/1288776/000119312509150129/dex992.htm












From the official UK regulator‟s guidance, released on the day this became law , entitled

“No, we don‟t know what to do either”49.

A few alternatives

I will concede that there are genuine privacy concerns posed by the Internet, but the

current law isn‟t the solution. Here are my own thoughts:

1. Educating users to understand cookies. Have the advertising industry pay

for a brilliantly clear website explaining cookies, with instructions on how to opt

out. Require them to show it to tens of millions of people.

2. Requiring legible cookie policies. Set a template which is simple, clear and

consistent, and require all companies to use it and point to it in a standard way,

e.g. at a fixed URL.

3. Define a viable internet standard. Websites which use certain cookies could

be required to set a new meta tag or header explaining what those cookies do.

Browsers would be happy to support this, and could provide useful controls to

show concerned users information if they wanted it.

The new law means well but gives little consideration to the majority of normal website

owners or consumers. Our best hope is that like so many other ridiculous laws, it gets

ignored entirely.

Or you could always move to another country.

49 Actually, it‟s “Changes to the rules on using cookies and similar technologies for storinginformation”. I prefer my title.




Solutions

The best practical advice on how to comply with the law.

What is the general consensus?

The general consensus is “wait and see” and “we don’t know how this will

work”.

Some of the companies most affected by this are have said nothing, particularly Google. A

handful of analytics companies (Omniture50, WebTrends51) have made statements that

essentially say “ask someone else for advice”, and the UK‟s governing body has made

vague non-committal suggestions about what might be compliant.

Adobe

Who provide Omniture analytics:

“... each customer should seek advice from their own counsel. Every business is

different and has a different risk tolerance”

“Consider using cookies only when strictly necessary to operate the service the user is requesting”

“Closely monitor the development of the implementations of the ePrivacy Directive”

WebTrends

Who provide WebTrends analytics:

“With many businesses involv ed internationally it may be difficult to determinewhich specific law apply, and you should consult your legal counsel.”

“Evaluate consent mechanisms, and select what best fits your business.”

50 http://blogs.omniture.com/2011/05/24/european-union-eprivacy-directive-update/51 http://blogs.webtrends.com/blog/2011/05/27/eu-directive-and-cookie-law-qa/










Determining what cookies you use

Silktide - the company who made this book - provide a tool for testing websites called

SiteBeam, which can measure what cookies every page in your site uses automatically:

It can also help draft your cookie policy, test your spelling, accessibility, SEO, speed and

more.

Try it for free at: www.silktide.com/sitebeam














2. Almost everyone would need to upgrade their browsers. Ten years after

it came out, 10% of the world still use Internet Explorer 6 – a clunky, insecure

piece of crap - even after Microsoft themselves have run a massive advertising

campaign saying “it‟s time to say goodbye to IE6” 53. Some organisations simply

refuse change, some have no choice if they want to run old software, others

don‟t care.

Microsoft‟s own website to move people away from IE6

In this case the circumstances are much worse – no browsers currently exist that

are compatible with the new law. So instead of getting people to upgrade from

just one browser (IE6), we would need almost everyone to upgrade to a new

browser. Every company, home and mobile device. Good luck with that.

There‟s only one vaguely viable solution we could see working, and it looks like this:

Upon loading your new browser, it detects that the user is in the EU, and explains the

new law to them. Probably in a detailed manner that satisfies EU legal experts, but

completely goes over the gnat-like attention span of the average user.

53 http://ie6countdown.com/

http://ie6countdown.com/







The explanation concludes with two options:

I agree to opt in to all evil cookies forever and ever.

Let me agree to cookies on a site-by-site basis.

If the user chooses to opt in, they get the Internet like they always have, and the law isessentially a joke.

If the user doesn‟t opt in, they see a popup or similar on every website they visit that

uses cookies, asking them if they want to allow that cookie. Or if they‟d prefer to opt in

to all cookies, and never see this question again, which of course they will do pretty soon

afterwards.

“ Browser settings may only deliver consent in very limited circumstances. Notably, if

browsers are set up by default to reject all cookies (having the browser

set to such an option) and the user has changed the settings to

affirmatively accept cookies , for which he has been fully informed about the

name of the data controller, the processing its goals and the data that is collected ”

EU Data Protection Working Party, 201054

This scenario depends on a questionable interpretation of the law – certainly in spirit, it

accomplishes almost nothing. And of course you‟d still have the problem that people still

have to upgrade to this new, monstrous browser, which would take many years.

In the meantime, website owners will be expected to do something.

Analytics companies have a hard time ahead

Nearly all existing analytics software relies upon cookies that expressly do what the law

prohibits – they track visitors without consent . We see them as one of the greatest losers

under the new law.

Because they‟re generally large and affect a lot of people, they‟re also obvious targets for

complaints. Even if they themselves are not accountable, their clients are – and no-one

wants to sell a product that their clients get sued for using.

So we expect analytics companies to introduce new options to accommodate for the law:

1. A no-cookie option, possibly only applying to users located in the EU.

54 http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp171_en.pdf










penalties possible. This still means people will be forced to comply, but they‟re unlikely to

suffer much beyond having to do the work necessary.

If we look at the figures for other Acts the UK regulator (the ICO) has regulated for

some time58, this is what has happened historically:

Data Protection Act


Cases closed: 32,714

Prosecutions: 9

Enforcement notices: 15

Freedom of Information Act


Cases closed: 4,196

Regulatory and enforcement actions: 3

There is no guarantee that the e-Privacy law will be enforced in a similar way, but if so itappears prosecutions and financial penalties are an absolute last resort. However, it also

suggests that tens of thousands of organisations may at least be ordered directly to

comply with the law.

Query parameters will rise

We believe that query parameters, like this:

www.example.com/?session=1234

Allow for websites to continue to track users whilst still technically not falling foul of the

law (this isn‟t true for other technologies we‟ve researched). The alternative – requiring

consent for query parameters – is too mind-bendingly stupid to contemplate.

Although they aren‟t a perfect substitute for cookies, they allow many of the same things

– particularly tracking visitors around a website, and as such we expect to see them rise.

Of course query parameters are a horrible solution to this problem, being less secure and

user friendly, but they may become de facto loophole around the whole charade.

Extra work and another fad to follow

Web developers rejoice. The public sector are publicly obligated to abide by the new law,

and will likely commission new software and web development to satisfy it.

58 http://www.ico.gov.uk/about_us/our_organisation/key_facts.aspx








Large companies are likely to modify their procurement rules, if only to be seen to be

„working towards compliance‟. They may require their suppliers to meet the laws in

future.

Depending on how much attention it gets, this law could filter down to smaller websites,

but we doubt it.




Conclusion

There‟s still much we don‟t know about this law.

The biggest questions are:

1. What will other EU member states make law?

2. Will the law really be enforced?

At the moment only the UK has published any guidance at all, and our sources tell us that

the other EU member states are likely to set different laws. If that‟s the case, website

owners may need different solutions for different parts of the EU , which will complicate

matters enormously.

We‟re honestly hoping this law is too stupid to be enforced. At least in its present form,

the UK regulator themselves are barely able to comply with their own guidelines, and real

technical solutions appear to be years away.

History has shown that whilst the UK regular may process tens of thousands of cases,

only a handful resulted in punitive actions59. We expect that many websites will be

ordered to change, but few will be fined for it.

So there is hope.

In the meantime, try not to panic.

59 http://www.ico.gov.uk/about_us/our_organisation/key_facts.aspx










refuse should be as user-friendly as possible. Exceptions to the obligation to provide

information and offer the right to refuse should be limited to those situations where

the technical storage or access is strictly necessary for the legitimate purpose of

enabling the use of a specific service explicitly requested by the subscriber or user.

Where it is technically possible and effective, in accordance with therelevant provisions of Directive 95/46/EC, the user's consent to

processing may be expressed by using the appropriate settings of a

browser or other application. The enforcement of these requirements should

be made more effective by way of enhanced powers granted to the relevant

national authorities.

The bold section appears to suggest that browser settings (i.e. leaving cookies enabled, as

they are by default in most nearly all) would be sufficient to comply.

The Internet and advertising industry quickly began citing Recital 66 as proof that awebsite can rely on browser settings to indicate consent to cookies. Privacy watchdogs

disagreed, and subsequent events have discredited this interpretation.

EU Working Party clarification

The Article 29 Working Party is a coalition of data protection regulators from across the

EU. They met to clarify the official EU position on this Directive.

In June 2010 they published their opinion in a 24 page document61:

“It follows from the literal wording of Article 5.(3) that: i) consent must be

obtained before the cookie is placed and/or information stored in the user's

terminal equipment is collected, which is usually referred to as prior consent

and ii) informed consent can only be obtained if prior information

about the sending and purposes of the cookie has been given to the

user .”

Of importance to people looking for guidance on asking for consent:

“In this context, it is important to take into account that for consent to be valid

whatever the circumstances in which it is given, it must be freely given, specific and

constitute an informed indication of the data subject‟s wishes. Consent must be

61 http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp171_en.pdf








obtained before the personal data are collected, as a necessary measure to ensure

that data subjects can fully appreciate that they are consenting and what they are

consenting to. Furthermore, consent must be revocable.”

They specifically discredited the idea that existing browser settings were sufficient:

“… g enerally speaking data subjects cannot be deemed to have consented

simply because they acquired/used a browser or other application which by

default enables the collection and processing of their information. Average data

subjects are not aware of the tracking of their online behaviour, the

purposes of the tracking, etc. They are not always aware of how to use

browser settings to reject cookies, even if this is included in privacy policies. It is a

fallacy to deem that on a general basis data subject inaction (he/she has not set

the browser to refuse cookies) provides a clear and unambiguous indication of

his/her wishes.”

They also acknowledged the impracticalities of asking for consent for 3rd party cookies

which are shared between multiple websites (e.g. the cookies which Google, Facebook

etc set on many other websites which use them):

“The Article 29 Working Party is conscious of the current practical problems

related to obtaining consent, particularly if consent is necessary every time a cookie

is read for the purposes of delivering targeted advertising. To avoid this problem …

users' acceptance of a cookie could be understood to be valid not only for thesending of the cookie but also for subsequent collection of data arising from such a

cookie. In other words , the consent obtained to place the cookie and use

the information to send targeting advertising would cover subsequent

'readings' of the cookie that take place every time the user visits a

website partner of the ad network provider which initially placed the

cookie.”

This in itself appears to suggest that the liability for setting those cookies belongs to the

advertising provider, if only because they are the ones who would have to ask for

permission. If so, it suggests the companies with the most to fear are those who embed

their technology into other‟s websites (such as Google, Facebook, YouTube, plus

countless analytics and advertising companies).

Finally they issued specific guidance on the type of disclaimers that people using cookies

(in this case, advertisers) would need to provide:




Providing highly visible information is a precondition for consent to be valid.

Mentioning the practice of behavioural advertising in general terms and conditions

and/or privacy policies can never suffice. In this regard and taking into account the

average low level of knowledge about the practice of behavioural advertising, efforts

should be applied to change this situation.

Ad network providers/ publishers must provide information to users in compliance

with Article 10 of Directive 95/46/EC. In practical terms, they should ensure that

individuals are told, at a minimum, who (i.e. which entity) is responsible for serving

the cookie and collecting the related information. In addition, they should be

informed in simple ways that (a) the cookie will be used to create profiles; (b) what

type of information will be collected to build such profiles; (c) the fact that the

profiles will be used to deliver targeted advertising and (d) the fact that the cookie

will enable the user's identification across multiple web sites.

Network providers/ publishers should provide the information directly on the screen,

interactively, if needed, through layered notices. In any event it should be easily

accessible and highly visible.

Icons placed on the publisher's website, around advertising, with links to additional

information, are good examples. The Article 29 Working Party urges the network

providers/ publisher industry to be creative in this area.

Confusing clarification from EU

In November 2010, European Parliament deputy Alexander Alvaro conducted an

interview in which he clarified the intent of the EU Directive62.

He stated it does not require websites to obtain prior consent for cookies to be placed on

users‟ computers, saying:

“The definition of consent as provided by the data protection directive is very clear.

Any further details would rather complicate the matter in my opinion. European

legislation should set the appropriate framework for its application at [the] national level.”

He suggests that while browser settings may be sufficient for compliance with the law,

because Flash cookies are not controlled by the browser, they may not be:

62 http://admin.campaigner.nl//users/ddma/files/95907289-alexanderalvaroexplainescookies.pdf








“Therefore, since flash cookies cannot be as simply deleted as other third party




devices, such as HTML5- t echniques, Java API, Silverlight or similar technique.”

He questions some of what the Working Party said:

While the Article 29 WP worr[ies] that adapting the browser settings

does not constitute informed consent by the user, I believe that it does

precisely that. True, most browsers are set to accept all cookies by default.

Nothing would prevent a relevant notice upon installation of the browser informing

the user about this fact.

At this point it becomes increasingly difficult to know how the law will be interpreted,

and all eyes were on the member states to clarify the situation in their own laws.

The UK law passes the buck

In September 2010 the UK announced that they would be copying the EU directive word-

for-word into UK law. In doing so they missed an opportunity to provide much sought-

after clarification.

The Department for Business Innovation and Skills (BIS) said63:

"Given the fast-moving nature of the Internet, it would be very difficult to provide

an exhaustive list of what uses are strictly necessary to deliver a particular online

service and if we implemented in this way it would risk damaging innovation. We

therefore propose to implement this provision by copying out the relevant wording

of the Article, leaving ICO (or any future regulators) the flexibility to adjust to

changes in usage and technology.”

Essentially they passed the buck.

63 http://www.bis.gov.uk/assets/biscore/business-sectors/docs/i/10-1132-implementing-revised-electronic-communications-framework-consultation.pdf

http://www.bis.gov.uk/assets/biscore/business-sectors/docs/i/10-1132-implementing-revised-electronic-communications-framework-consultation.pdf









The ICO issues guidance

The Information Commissioner‟s Office is the body responsible for enforcing the new

laws in the UK. Less than a month before the law came into effect, they issued some of

their own guidance64.

They again clarified that browser settings are insufficient for consent:

“At present, most browser settings are not sophisticated enough to allow you to

assume that the user has given their consent to allow your website to set a cookie.

Also, not everyone who visits your site will do so using a browser. They may, for

example, have used an application on their mobile device. So, for now we are

advising organisations which use cookies or other means of storing information on a

user‟s equipment that they have to gain consent some other way.”

“We are aware that the government is working with the major browser

manufacturers to establish which browser level solutions will be available and when.

For now, though, you will need to consider other methods of getting user consent.”

They also clarified that the law covers all "similar technologies” to cookies:

“The Regulations also apply to similar technologies for storing information. This

could include, for example, Locally Stored Objects (commonly referred to as “Flash

Cookies”).”

64 http://www.ico.gov.uk/~/media/documents/library/Privacy_and_electronic/Practical_application/advice_on_the_new_cookies_regulations.ashx








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